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Steven Bradbury

On Friday, the Senate Judiciary Committee held hearings on the recently-released report by the Justice Department’s Office of Professional Responsibility (OPR). The Office had been tasked with assessing whether lawyers in the Bush Office of Legal Counsel had acted unethically in crafting legal memoranda justifying torture.

Although the OPR report concluded that John Yoo and Jay Bybee had demonstrated “professional misconduct,” their recommendation for sanctions was overruled by Associate Deputy Attorney General David Margolis, who acknowledged that it was a close question but concluded that the two had exercised “poor judgment.

As we pointed out, regardless of the final recommendation, the detailed reports absolutely affirm that embattled nominee Dawn Johnsen, who has been waiting for more than a year to be confirmed to head OLC under Attorney General Eric Holder, was correct in her criticisms of the “torture memos” issued by the Bush OLC.

Rather than being pilloried for her legitimate criticisms of the Bush OLC’s failure to respect the rule of law, Johnsen should be celebrated for extraordinarily valuable process she led with 19 former OLC lawyers in fashioning principles to guide OLC’s work going forward.

Those principles, by the way, have garnered support across the political spectrum, including former Attorney General Alberto Gonzales, Timothy Elliott Flanigan (nominated by Bush to be Deputy Attorney General), and former OLC head Steven Bradbury.

At the hearings, Senator Leahy noted that Attorney General Holder has been hampered in fully reforming OLC as Johnsen’s confirmation continues to be obstructed by Republicans. She should be confirmed without further delay.

Via The San Francisco Chronicle, it seems that the latest filing by John Yoo's lawyer— in a case brought by a prisoner who was illegally detained and tortured based on Yoo’s advice—has all the hallmarks of one of Yoo’s own briefs: it’s slipshod, morally questionable and utterly unsupported by the facts.

Take this assertion, for instance:

[Miguel Estrada, Yoo’s lawyer] also cited the Justice Department's report last week concluding that Yoo committed no professional misconduct in his memos.

As the Chronicle points out, Estrada failed to mention that that the Office of Professional Responsibility concluded that Yoo (along with now-Federal Judge Jay Bybee) demonstrated “professional misconduct” and ignored legal precedents. Even the memo prepared by Associate Deputy Attorney General David Margolis, who ultimately attributed Yoo’s and Bybee’s actions to “poor judgment,” is “far from a vindication for John C. Yoo and Jay S. Bybee's shamefully narrow interpretations of laws against torture” according to the Los Angeles Times. Margolis, while ruling out the harshest punishment for Yoo, says that debate over whether “Yoo intentionally or recklessly provided misleading advice to his client” is a “close question.” Not exactly a ringing endorsement.

In fact, anyone who has actually read the report or Margolis’s memo knows that they paint a damning picture of Yoo’s actions. Estrada’s claim that they exonerate Yoo is wishful thinking at best.

Next up is Estrada’s shot at guidelines drawn by a group of OLC alumni, headed by Dawn Johnsen, to help the Office move forward after the torture memos were made public.

How Estrada can deliver such an allegation with a straight face is difficult to fathom. The idea that only partisans could oppose Yoo’s torture memos simply isn’t borne out by the facts. First off, Republican Lindsey Graham didn’t seem to be a big fan of Yoo’s opinions, saying:

The guidance that was provided during this period of time, I think will go down in history as some of the most irresponsible and short-sighted legal analysis ever provided to our nation's military and intelligence communities.

Even putting aside Graham’s criticism of Yoo’s memos, Johnsen’s statement of principles was endorsed by Attorney General Alberto Gonzales, Deputy Attorney General Timothy Flanigan, and Acting OLC head Steven Bradbury in testimony to Congress.

But perhaps most galling is Estrada’s claim that Yoo remains a "respected legal scholar."

Sunday's New York Times included an editorial calling for the impeachment of Jay Bybee, a U.S. Appeals Court Judge on the Ninth Circuit (nominated by Bush) who, while at the Department of Justice, authored memos providing the "legal" justification for the Bush administration's torture policies.

The Times is absolutely right: "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him."

Here's some more from the excellent editorial regarding the investigation that should take place (my emphasis added):

That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.

...

And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.

If the administration won't do it, Congress must hold the executive branch accountable. Sounds familiar.